The court must deem an exclusive occupancy order to be proper in your situation. This requires that you, the person applying, have a greater need to stay in the house than your ex-spouse. The court considers two things:
- Should the home be occupied by one party? And if so;
- Who should be forced out of the property?
The court will consider a variety of factors such as:
- the financial capabilities of either party
- the best interests and needs of any children
- the reasonableness and justness of making the order
- the affordability and availability of accommodation
- the conduct of the parties
- evidence of abuse or threats of abuse
For example, the court may decide that the primary carer stay in the home as it may be best for the children.
Exclusive occupancy is more often granted in cases of abuse and seeks to protect you and your children. It may be difficult to get the order without risk of harm.
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